Citation Nr: 0604056
Decision Date: 02/10/06 Archive Date: 02/22/06
DOCKET NO. 96-05 273 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for vasomotor rhinitis,
claimed as due to a concussion.
2. Entitlement to service connection for intermittent
labyrinthitis, claimed as due to a concussion.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for a tic of the left
shoulder, left arm, and left leg, claimed as due to a
concussion.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. Fitch, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1967 to
January 1970. Evidence that the veteran served in combat in
Vietnam is of record.
This matter comes before the Board of Veterans' Appeals
(Board) in a manner that requires some explanation. Service
connection for a tic of the left shoulder, left arm and left
leg as secondary to a concussion in service was denied in an
unappealed November 1991 rating decision. In June 1995, the
veteran, through his representative, submitted a claim for
service connection for the residuals of a concussion; with
his claim was included a statement by a private physician
indicating that the veteran had common migraine, vasomotor
rhinitis, intermittent labyrinthitis and vascular tinnitus.
In a September 1995 rating decision, the Department of
Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania determined that the veteran had not submitted
new and material evidence with which to reopen a claim for
service connection for "residuals of concussion". The
veteran appealed the September 1995 rating decision to the
Board.
In a December 1997 action, the Board styled the issue on
appeal as whether new and material evidence has been
submitted to reopen a claim for service connection for a tic
affecting the left shoulder, left arm and left leg as
secondary to a concussion. The Board explained that since
the issues of service connection for migraine with vasomotor
rhinitis, intermittent labyrinthitis and vascular tinnitus
secondary to a blast concussion had not been previously
denied, the RO should adjudicate those issues on a de novo
basis. The Board consequently remanded the case with
instructions for the RO to adjudicate the claims for migraine
with vasomotor rhinitis, intermittent labyrinthitis and
vascular tinnitus on a de novo basis. The Board also
instructed the RO to adjudicate several other issues which
are not before the Board at this time.
Following remand of the case to the RO, the RO adjudicated
the migraine headache, vasomotor rhinitis, intermittent
labyrinthitis and vascular tinnitus claims in an October 1999
rating decision; a statement of the case addressing those
claims was issued later in October 1999 and the veteran
submitted a VA Form 9 in November 1999.
On July 2, 2002, the Board issued a decision denying the
veteran's claims for service connection for migraine
headaches, vasomotor rhinitis and intermittent labyrinthitis,
all claimed as due to a concussion, and denying the claim to
reopen the issue of service connection for a tic of the left
shoulder, left arm, and left leg, claimed as due to a
concussion. The Board explained that the issue of
entitlement to service connection for vascular tinnitus would
be the subject of a separate decision following further
development of that issue by the Board (the record reflects
that the Board thereafter remanded the tinnitus issue to the
RO in October 2003). The veteran appealed the Board's July
2002 decision to the United States Court of Appeals for
Veterans Claims (Court), and the Court, in a September 2003
order, granted a Joint Motion for Remand filed by the parties
to the appeal, and vacated and remanded the Board's July 2002
decision. The case was thereafter returned to the Board.
The Board notes that the veteran, in November 2000, requested
a hearing before a member of the Board in Washington, DC.
The requested hearing was scheduled for May 2002, but the
veteran failed, without explanation, to report. His request
for a hearing before a member of the Board is therefore
considered withdrawn. 38 C.F.R. § 20.702(d) (2003).
The Board notes that the Joint Motion for Remand suggested
that the Board consider clarifying what conditions the
veteran claims resulted from his in-service shell blast, and
"consolidate [the claimed conditions] in a cohesive
manner." The Board points out that the only issues
developed for appellate review, and over which the Board
therefore has jurisdiction, are those listed on the title
page of this action (as well as the issue of entitlement to
service connection for vascular tinnitus which at the time
was in remand status). If the veteran wishes to file a claim
for service connection for a disability other than those
referenced in the preceding sentence, he should so notify the
RO, which should respond appropriately to any communication
received.
Finally, in February 2004, the matter was again remanded for
further development and adjudication. Subsequent to this
remand, in a November 2005 rating decision, service
connection was granted for tinnitus and migraine headaches.
This represents a full grant of benefits sought by the
veteran with respect to those issues. The remaining issues
have been returned to the Board.
The issue of entitlement to service connection for
intermittent labyrinthitis, claimed as due to a concussion,
and the veteran's application reopen a claim for service
connection for a tic of the left shoulder, left arm, and left
leg, claimed as due to a concussion, are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
The veteran's vasomotor rhinitis, if any, is not related to a
disease or injury in service.
CONCLUSION OF LAW
Vasomotor rhinitis was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110 (West 2002);
38 C.F.R. §§ 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at
38 C.F.R. § 3.159, amended VA's duties to notify and to
assist a claimant in developing the information and evidence
necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate the claim, which information and evidence that
VA will seek to provide and which information and evidence
the claimant is expected to provide. Furthermore, in
compliance with 38 C.F.R. § 3.159(b), the notification should
include the request that the claimant provide any evidence in
the claimant's possession that pertains to the claim.
In this case, by way of a letter dated in February, the
appellant was furnished notice of the types of evidence
needed in order to substantiate his claim of service
connection for vasomotor rhinitis, as well as the types of
evidence VA would assist him in obtaining. The appellant was
informed of his responsibility to identify, or submit
directly to VA medical evidence, including evidence that
shows an injury or disease in service, a currently
disability, evidence of a relationship between the current
disability and a disease or injury in service. The appellant
was also informed that this evidence could consist of medical
records or medical opinions, as well as evidence from other
sources. The appellant was also informed that he should send
to VA evidence in his possession that pertains to the claim.
In addition, by way of rating decisions dated in November
1991, September 1995, and October 1999, Statements of the
Case dated in December 1995 and October 1999, and
Supplemental Statements of the Case dated in January 2002,
and November 2005, the RO advised the appellant and his
representative of the basic law and regulations governing the
claim, the cumulative information and evidence previously
provided to VA (or obtained by VA on the veteran's behalf),
and provided the basis for the denial of the claim. These
documents, when considered together with RO's VCAA and
development letters, also provided the appellant and his
representative with adequate notice of the evidence, which
was not of record, that was necessary to substantiate the
appellant's claim, and also specifically informed the
appellant of the cumulative information and evidence
previously provided to VA, or obtained by VA on the
appellant's behalf.
In the present case, the Board notes that VA provided
adequate VCAA notice with respect to the appellant's claim
only after the initial decision in this case. While the
notice provided was not given prior to the first RO
adjudication of the claim, the notice was provided by the RO
prior to the November 2005 Supplemental Statement of the
Case, and prior to the transfer and certification of the
appellant's case to the Board. The Board also finds that the
content of the notice fully complied with the requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and observes
that the appellant and his representative have had time to
consider the content of the notice and respond with any
additional evidence or information relevant to the claim.
Based on the above, the Board concludes that any defect in
the timing of the VCAA notice is harmless error. See
generally, Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). To decide the appeal on these
facts would not be prejudicial error to the appellant.
For the reasons above the Board finds that VA substantially
complied with the specific requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate the claim and the relative duties of VA and the
claimant to obtain evidence); Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies the
VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the
notice requirement, pertaining to the evidence in the
claimant's possession or a similar request to that effect).
See also, Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
In this context, it is well to observe that the VCAA requires
only that the duty to notify be satisfied, and that claimants
be given the opportunity to submit information and evidence
in support of their claims. Once this has been accomplished,
all due process concerns have been satisfied. See Bernard v.
Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet.
App. 553 (1996).
The Board also finds that VA has made reasonable efforts to
assist the appellant in obtaining evidence necessary to
substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In
particular, the information and evidence associated with the
claims file consists of the appellant's service medical
records, post-service medical treatment records and VA
examination reports, and statements submitted by the
appellant and his representative in support of the claim. In
addition, the Board notes that this matter was previously
remanded for additional development to include a VA
examination in connection with the claim.
Based on the foregoing, the Board concludes that there is no
identified evidence that has not been accounted for with
respect to the appellant's claim and that, under the
circumstances of this case, VA has satisfied its duty to
assist the appellant in this case. Accordingly, further
development and further expending of VA's resources is not
warranted. See 38 U.S.C.A. § 5103A.
II. Entitlement to service connection for vasomotor
rhinitis.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted
during service is not shown to be chronic, then generally a
showing of continuity of symptomatology after service is
required for service connection. 38 C.F.R. § 3.303(b).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d). For certain chronic diseases, a
presumption of service connection arises if the disease is
manifested to a degree of 10 percent within a year following
discharge from service. 38 C.F.R. § 3.307, 3.309. Further,
service connection may be granted for disability proximately
due to or the result of a service-connected disability and
where aggravation of a nonservice-connected disorder is
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet.
App. 439 (1995) (en banc).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The Board is charged with
the duty to assess the credibility and weight given to
evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001);
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the
Court has declared that in adjudicating a claim, the Board
has the responsibility to do so. Bryan v. West, 13 Vet.
App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet.
App. 614, 618 (1992).
In this case, the veteran has been diagnosed as having
vasomotor rhinitis. Therefore, although the Board has
reviewed the lay and medical evidence in detail, the Board
will focus its discussion on evidence that concerns whether
the veteran's current disability is related to a disease or
injury in service.
The medical evidence in this case consists of private and VA
treatment records and a VA examination conducted in March
2005. Of particular interest is a private treatment report
dated in November 1994. In this report, the veteran's
physician noted the veteran's medical history, including a
rather severe concussion from an exploding shell when the
veteran served in Vietnam. The veteran reported experiencing
pressure in the back of the head shortly after this incident
that gradually increased, with pain being severe enough at
times to keep him from working. He also indicated ringing in
his ears and nasal congestion, although there was no
sneezing, coughing or wheezing. The physician noted that the
veteran had undergone extensive evaluations in connection
with his symptoms, but that these studies did not delineate
any apparent pathology. After an examination, the veteran
was assessed with comon migraine with: vasomotor rhinitis,
intermittent labyrinthitis, and vascular tinnitus. No
express opinion regarding nexus to service was offered.
In March 2005, the veteran was afforded a VA examination in
connection with his claim. The examiner indicated that the
veteran's claims file was reviewed prior to the examination.
The examiner noted that the veteran denied any symptoms of
nasal obstruction, nasal discharge, dyspnea at rest or on
exertion, and noted that the veteran denied any known prior
treatment for nasal problems. The veteran was noted to have
no speech impairment and no history of sinusitis or inhalant
allergies. The only significant medical incident was found
to be an evaluation in 1992 by an outside ENT physician that
indicated a nasal septal deviation. After a physical
evaluation, examiner found that the veteran did not appear to
have any symptomatic vasomotor rhinitis. Based on an absence
of symptoms and findings of nasal septal deviation with a
septal spur, the examiner found that it was unlikely that the
veteran's previous diagnosis of vasomotor rhinitis is
etiologically related to his period of service and the
concussion experienced therein.
In light of the foregoing, the Board finds that the evidence
of record is against a finding that the veteran's vasomotor
rhinitis, if any, is related to an injury in service. While
the veteran does carry a diagnosis of vasomotor rhinitis
dating to at least 1994, the March 2005 VA examiner did not
find any symptomatic vasomotor rhinitis at the time of the
examination. And when asked to relate the veteran's
condition, if any, to his service, the examiner specifically
found that the veteran's condition was not likely
etiologically related to his period of service and the
concussion experienced therein. While the veteran may feel
that his condition is related to service, the Board notes
that, as a layperson, the veteran is not competent to
establish a medical diagnosis or show a medical etiology;
such matters require medical expertise. 38 C.F.R.
§ 3.159(a)(1) (competent medical evidence means evidence
provided by a person who is qualified through education,
training or experience to offer medical diagnoses, statements
or opinions); see also Grottveit v. Brown, 5 Vet. App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). Without medical evidence linking the veteran's
current condition with his active duty service, there is no
basis upon which to establish service connection. Service
connection for vasomotor rhinitis must be denied.
ORDER
Service connection for vasomotor rhinitis is denied.
REMAND
For the reasons set forth below, the veteran's claims of
entitlement to service connection for intermittent
labyrinthitis, claimed as due to a concussion, and the
veteran's application to reopen a claim for service
connection for a tic of the left shoulder, left arm, and left
leg, claimed as due to a concussion, must regrettably be
remanded again for further development and adjudication.
When this case was previously before the Board in February
2004, it was remanded for further development. In doing so,
the Board directed that the RO should arrange for the veteran
to undergo a VA neurological examination by a physician with
appropriate expertise to determine the nature, extent and
etiology of his migraine headaches; and the nature, extent
and etiology of any intermittent labyrinthitis. With respect
to any intermittent labyrinthitis identified, the examiner
was requested to provide an opinion as to whether it is at
least as likely as not that the disorder is etiologically
related to the veteran's period of service, including to any
concussion experienced therein, or whether the disorder was
manifest within one year of the veteran's discharge from
service. On March 9, 2005, a VA examination was conducted in
connection with the veteran's claims. While the examination
appears to have addressed the remand questions regarding the
veteran's headache condition, no opinion was given regarding
intermittent labyrinthitis, and the remand questions
regarding this condition were not addressed. Two other VA
examinations, also conducted in March 2005, also did not
address the remand questions regarding this condition.
In addition, with respect to the veteran's application to
reopen a claim for service connection for a tic of the left
shoulder, left arm, and left leg, claimed as due to a
concussion, the February 2004 remand specifically asked the
RO to send the veteran and his representative a letter
explaining the VCAA that complies with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b). The letter was to explain, what,
if any, information (medical or lay evidence) not previously
provided to the Secretary is necessary to substantiate the
veteran's claims. The letter was also to specifically inform
the veteran and his representative of which portion of the
evidence is to be provided by the claimant, which part, if
any, the RO will attempt to obtain on his behalf, and request
that the veteran provide any evidence in his possession that
pertains to his claims. See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). While in February 2004, the RO did
send a letter of this sort to the veteran in connection with
his claims of entitlement to service connection, the letter
did not inform the veteran of the requirements of the VCAA in
connection with his application to reopen his previously
denied claim. This was specifically noted as a deficiency in
the February 2004 remand and it remains deficient still.
In light of the foregoing, therefore, the Board reluctantly
concludes that these matters must be remanded for compliance
with the Board's February 2004 remand instructions. As the
Court has stated,
[A] remand by this Court or the Board
confers on the veteran or other claimant,
as a matter of law, the right to
compliance with the remand orders. We
hold further that a remand by this Court
or the Board imposes upon the Secretary
of Veterans Affairs a concomitant duty to
ensure compliance with the terms of the
remand.
Stegall v. West, 11 Vet. App. 268, 271 (1998).
In view of the above, this matter is REMANDED to the RO for
the following actions:
1. With respect to the veteran's
application to reopen his claim for
service connection for a tic of the left
shoulder, left arm, and left leg, claimed
as due to a concussion, the RO should
send the veteran and his representative a
letter explaining the VCAA that complies
with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). The letter should explain,
what, if any, information (medical or lay
evidence) not previously provided to the
Secretary is necessary to substantiate
the veteran's claims. The letter should
also specifically inform the veteran and
his representative of which portion of
the evidence is to be provided by the
claimant, which part, if any, the RO will
attempt to obtain on his behalf, and
request that the veteran provide any
evidence in his possession that pertains
to his claims. See Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
2. Thereafter, the RO should arrange for
the veteran to undergo a VA neurological
examination by a physician with
appropriate expertise to determine the
nature, extent and etiology of any
intermittent labyrinthitis. All
indicated studies should be performed,
and all findings should be reported in
detail. With respect to any intermittent
labyrinthitis identified, the examiner
should be requested to provide an opinion
as to whether it is at least as likely as
not that the disorder is etiologically
related to the veteran's period of
service, including to any concussion
experienced therein, or whether the
disorder was manifest within one year of
the veteran's discharge from service.
The veteran's claims file, including a
copy of this remand, must be made
available to the examiner for review.
The examination report is to reflect
whether such a review of the claims file
was made.
3. Thereafter, the RO should re-
adjudicate the issues of entitlement to
service connection for intermittent
labyrinthitis (claimed as due to a
concussion), and re-adjudicate the issue
of whether new and material evidence has
been submitted to reopen the claim for
service connection for a tic of the left
shoulder, left arm and left leg (claimed
as due to a concussion).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs